23/11/2021
HXA v Surrey County Council and YXA (through the Official Solicitor) v Wolverhampton City Council 8 November 2021
Why is the Judgment important?
It confirms as settled authority the principle that local authority social services departments do not owe a general duty of care to keep children safe from harm.
It is the latest application of the principle that public authorities do not generally owe a common law duty of care to protect a person from harm or to confer a benefit when exercising their statutory powers (as opposed to statutory duties).
The Claimants' cases
HXA had been subject to physical abuse by her mother and sexual abuse by her mother's partner. YXA was physically disabled, had learning difficulties, and had been physically abused and overmedicated by his parents.
The court applied the principles in the 2020 Supreme Court decision C& N v Poole and the 2021 case DXF (see a link here to my article about DXF, a case very similar on the facts to HXA).
The court’s view was that in both cases it was the Claimants’ families which had caused the harm, not the Social Services Departments (“SSDs”). The allegations were of an omission/failure to confer a benefit/not making things better. "Something more" than a failure to exercise a statutory power was required before there was an assumption of responsibility by the SSDs, such that a duty of care in tort would arise.
In HXA, a duty of care did not arise on the basis of the SSD placing a child’s name on the Child Protection Register, deciding to undertake a full assessment with a view to initiating care proceedings but not doing so, or resolving to undertake keeping safe work with HXA, but failing to do so.
Furthermore in YXA's case, the intermittent provision of temporary accommodation by the SSD away from the family home (under section 20 of the 1989 Children's Act) was not sufficient to establish a duty of care. There was no criticism of the care received by YXA during the periods of his temporary accommodation.
The Court stated that "it is now well established that there is no duty of care owed in relation to child protection functions generally and the fact of s.20 temporary accommodation cannot be used as a peg on which to assert the assumption of responsibility."
The court concluded that "neither claim disclosed any recognisable basis for a cause of action in the tort of negligence against the Defendants, and there was no error in the exercise of the court's discretion to strike out those parts of each claim.”
If you would like to discuss this topic, please contact Adrian Neale, Associate.
